MEHTA, J. - (1.) ON December 12, 1966, it is alleged, the accused Harbans Singh was driving bus No. RJK 4157 and was proceeding from Karanpur to Ganganagar. Another bus No. RJL 7723 was also going towards the same direction and on the same route. Soonafter bus No. RJK 4157 reached the bus stand Mirzawala, the other bus started towards Ganganagar. Later on the accused Harbans Singh also left the Mirzawala bus-stand and began plying his vehicle with a fast speed so as to overtake the bus No. RJL 7723. After covering a distance of about two miles from Mirzawala bus-stand, Harbans Singh's bus collided against the other bus, which at the moment was standing on the road side. As a result of this collision five persons, including Chatruram, P. W. 1, and the deceased Ramlal, were injured. Bodies of both the vehicles were also damaged. First information report of the occurrence was lodged soonafter with the police station, Ganganagar. All the injured persons were examined by P. W. 2 Dr. Lajpat Raj, Medical Jurist, General Hospital, Ganganagar. The injured Ramlal succumbed to his injuries 13 days after the mishap. The two buses were inspected by the mechanic of the Police Department, Goverdhan Singh, P. W. 3. After the investigation was concluded, the police put up a challan in the court of the Munsiff-Magistrate, Ganganagar, against the accused Harbans Singh. The accused denied to have committed any offence before the trial court. In support of its case the prosecution examined 3 witnesses, namely; the injured Chatruram P. W. 1, Dr. Lajpat Raj P. W. . 2, and the mechanic Goverdhan Singh P. W. 3. In his statement, recorded under S. 342, Cr. P. C. , the accused stated that he was driving the bus only upto Mirzawala bus-stand. Thereafter Kapur Singh handled it. The bus, according to him, moved slowly. All of a sudden the tie-rod of the bus gave way and that eventually resulted in the accident. The accused did not produce any evidence in his defence. The trial court, by its judgment, dated September 11, 1967, convicted the accused Harbans Singh under secs. 279, 337 and 304-A, I. P. C. The accused was sentenced to three months' rigorous imprisonment under S. 337, I. P. C He was sentenced to 12 months' rigorous imprisonment under S. 304-A,, I. P. C. Both the sentences were directed to run concurrently. No separate sentence was imposed for the offence under S. 279, I. P. C. An appeal was preferred by the accused in the court of the Sessions Judge, Ganganagar. That appeal, it appears, was subsequently transferred to the Additional Sessions Judge, Ganganagar. The appellate court by its judgment, dated September 28, 1968, maintained both the conviction and the sentences awarded to the appellant by the court of the first instance. Hence this revision-petition.
(2.) LEARNED counsel for the petitioner has submitted the following 3 contentions: - (1) The court below fell in error in relying upon the testimony of a layman Chatruram, P. W. 1, on the question of determining the speed of the bus; (2) The lower court went wrong in not properly appreciating the fact that the tie rod of the vehicle, as stated by the accused Harbans Singh, suddenly gave way before the incident, as a result of which the vehicle went out of control. (3) The court below did not properly appreciate the fact that important witnesses were withheld by the prosecution for which adverse inference could have been drawn. I may now take up the first point first. Chatruram, P. W. 1, has deposed that the bus being driven by Harbans Singh was moving at a very fast speed. The passengers asked the driver to slow down the bus speed but the accused paid no heed to it. After sometime the bus, driven by Harbans Singh, collided against the other bus lying on the road side. In the cross-examination the witness has said that the road on which the vehicle was being driven was a straight and a clear one. The bus, which was moving ahead, gave side to the bus, wherein he was seated. The witness admits that he is not expert in motor driving or its mechanism and that he could not say with what speed the vehicle moved. He further deposes that he has got no idea or knowledge about the various parts of a bus. The statement of Chatruram in the matter of speed is much too vague. He has not given any estimate of the exact speed at which the bus was moving. From the statement of this witness it is further clear that the bus reached Mirzawala bus stand at about 5 p. m. , on the date of the incident. It stopped there for about 5 to 7 minutes and then it started towards Ganganagar. The place where the incident occurred is about 2-1/2 miles off from Mirzawala bus-stand. This distance was covered within about 15 miles. That shows that the bus was running at a speed of about 10 miles an hour. As has been stated above, the road was straight and clear. 10 miles' speed can, under no stretch of imagination, be said to be excessive. There is no other evidence to suggest that the bus was travelling at a fast speed. In this view of the matter, the finding of the court below about the excessive speed of the bus ostensibly appears to me to be unsupported by the evidence on the record. I now switch over to the second point. In regard to the breakage of the tie rod, the accused has stated in his statement, recorded under S. 342, Cr. P. C. , that the tie-rod of the bus No. RJK 4157 gave way before the actual incident and, therefore, the bus went out of control. There is no evidence, adduced on behalf of the prosecution, which negatives the plausible explanation furnished by the petitioner. The prosecution, no doubt, examined a motor mechanic P. W. 3 Goverdhan Singh. Whether he is really an expert in motor mechanism is not known. The witness does not say in his statement whether and where he had received training in the motor mechanism. He does not even mention his qualification and experience. The trial court and the appellate court have completely neglected the absence of evidence on this aspect of the matter. Law does not permit any assumption without evidence on the material point of competence of the witness, who offers opinion for consideration against an accused; vide Raj Kishore vs. State (1 ). Goverdhan Singh has stated in his deposition that he found tie rod of the bus broken and that be could not say with certainty whether it gave way before or after the incident. He has again pointedly said that if the tie-rod breaks, it is impossible for the driver to control the vehicle. His evidence does not at all negative the explanation offered by the accused. To bring a case within the purview of S. 304-A. , I. P. C. the prosecution has to prove that the accused was guilty of culpable negligence. It cannot be laid down that the driver of a vehicle should undertake meticulous examination of a bus before it is put on the road. There is no evidence on the record to establish that the defect in question could have been within the knowledge of the accused. In this connection, a reference is made to State vs. Chater Singh (2 ). In that case a Division Bench of this Court has observed that where defective part is of such a nature that it could not be detected except on meticulous examination, the driver cannot ordinarily be held liable for its consequences. In the instant case the defect was such that it could not have been detected by the driver, nor is there any evidence to the effect that such a defect was within the knowledge of the accused. Under the circumstance, no criminal liability can be fastened on the petitioner. Turning now to the last point, the appellate court has observed that in this case there were as many as 9 witnesses. Of these witnesses only 3 persons have been examined by the prosecution. The important witnesses, namely, Firangilal, Sudesh Kumar, and Goppawar Singh, who received injuries, have not been examined by the prosecution. Sudesh Kumar, who was driving the bus No. RJL 7723, as also the investigating Officer, Durgaram, have bean withheld. These witnesses could have thrown a flood of light on the details of the incident. It is not understood why they have been withheld. It is the bounden duty of the prosecution to examine material witnesses, particularly when no allegation has been made that if, produced, they would not speak the truth. Not only does an adverse inference arise against the prosecution from the non-production of material witnesses in view of illustration (g) to sec. 114, Evidence Act, but the circumstance of their being withheld from the court casts a serious reflection on the fairness of the trial. In Darya Singh vs. State of Punjab (3), it has been observed that a prosecutor should not have adopted the device of keeping back material witnesses and that it is the duty of the prosecution to assist the court in arriving at the correct conclusion. It is no doubt true that the prosecutor need not examine witnesses, who, in his opinion, have not seen the occurrence. Normally he should examine all the material witnesses in support of his case. It may be correct that where there are a large number of witnesses, who witnessed the same incident, a selection may be made. But in the instant case not have adopted the witnesses are not many in number. Some of the witnesses sustained injuries and one of them was driving the bus No. RJL 7723. Why these witnesses have been deliberately kept back it not understood. An adverse inference, therefore, can be drawn from their non-production. For the foregoing reasons, the revision-petition is accepted. The conviction and the sentences awarded to the accused Harbans Singh under sections 279, 337, and 304 A. , I. P. C. , are set aside and he is acquitted of these charges. He is on bail and need not surrender to the bail bonds, which are hereby discharged. .;